N.J. Constitutional Convention: Vol. 4, Page 745

MEMORANDUM OF SAMUEL J. MARANTZ

SHALL WE END THE UNANIMITY RULE FOR VERDICTS IN CIVIL CASES?

&nbsp&nbsp holds, and a disagreement follows, the verdict becomes that of &nbsp&nbsp one&nbsp&nbsp juror. Yet under our system of democracy, we would consider it reasonable and logical to have permitted a verdict of 11 jurors&nbsp&nbsp - &nbsp&nbsp if we were not bounden down by the common law precedent.&nbsp&nbsp

4. Jury tampering and jury fixing would receive a serious blow by the adoption of the amendment, since under the amendment, and supporting legislative enactment, it would require reaching four members of the jury (if a three-fourths rule were adopted by the Legislature), or three corrupt jurors (in the case of a five-sixths rule).&nbsp&nbsp

5. The necessity that deliberations of the jury continue until a &nbsp&nbsp unanimous&nbsp&nbsp verdict is reached, results in a contest in the jury room between the strong and the weak, as to who best can endure the discomforts of confinement to the jury room, until final submission is made. Here, too, we have an historical relic which comes from the times when jurors could not separate until after the verdict, and to hasten their deliberations it was the law that they could neither eat nor drink till they had given their verdict,&nbsp&nbsp 12 Holdsworth, 1 &nbsp&nbsp History of English Law&nbsp&nbsp 318.&nbsp&nbsp to which Lord Cockburn noted in &nbsp&nbsp Winsor&nbsp&nbsp v &nbsp&nbsp Queen,&nbsp&nbsp 6 &nbsp&nbsp Best &&nbsp&nbsp &nbsp&nbsp S.&nbsp&nbsp 143, 171:&nbsp&nbsp &nbsp&nbsp &nbsp&nbsp

"Our ancestors insisted on unanimity as of the essence of a verdict, but were unscrupulous as to how that unanimity was obtained. Whether the majority, or the reverse, appeared to them a matter of indifference, it was a contest between the strong and the weak, the able-bodied and the infirm, as to who best could bear hunger and thirst and all the discomfort incident to confinement."&nbsp&nbsp

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In many jurisdictions in which a verdict may be rendered by less than all the jurors, such a verdict is permitted only if the jury had deliberated for the period of time prescribed by statute. Thus, under the Constitution of Nebraska, where it is provided that the legislature may authorize a verdict in civil cases by not less than five-sixths of the jury, the legislature enacted a statute permitting five-sixths verdicts

"provided that a verdict concurred in by less than all members of the jury shall not be rendered until the jury shall have had an opportunity for deliberation of the case for a period of not less than six hours after the same is submitted to said jury."

The proposed amendment is not novel in the history of our country's judicial systems. Verdicts by less than the entire number of jurors (allowed by constitutional provision) are now permitted in more than a third of the states. As early as 1878, the California Constitution provided: "The right to trial by jury shall be secured to all and remain inviolate, but in civil cases three-fourths of a jury may render a verdict." The following year, the Constitution of Louisiana provided that the General Assembly might provide by law